Ex parte Mills

1

EX PARTE SAMUEL ASHTON MILLS

No. 05-22-00814-CR

Court of Appeals of Texas, Fifth District, Dallas

May 3, 2023

Do Not Publish Tex.R.App.P. 47

On Appeal from the 219th Judicial District Court Collin County Texas Trial Court Cause No. 219-81922-2022

Before Justices Pedersen, III, Garcia, and Breedlove

MEMORANDUM OPINION

BILL PEDERSEN, III JUSTICE.

Samuel Ashton Mills appeals the trial court's August 12, 2022 order denying his pretrial petition for writ of habeas corpus. Appellant is accused of violating section 21.16(b) of the Texas Penal Code, which prohibits disclosure of certain visual material colloquially known as "revenge porn." See Tex. Penal Code Ann. § 21.16(b). In three issues, appellant contends that this statute is a content-based restriction on speech that (1) fails to satisfy strict scrutiny under the First Amendment and (2) likewise fails to satisfy strict scrutiny under the Texas Constitution, and (3) is overbroad. We affirm the trial court's order denying relief.

Background

The indictment in this case charges that appellant did:

with the intent to harm C.M., and without the effective consent of C.M., hereafter styled the complainant, disclose visual material, namely photograph and photographic reproduction that contains a photograph, depicting the complainant with her female nipple exposed, and, at the time of the disclosure of said visual material, the defendant knew or had reason to believe that the visual material was obtained by the defendant and created under circumstances in which the complainant had a reasonable expectation of privacy that the visual material would remain private, and the disclosure of the visual material caused harm to the complainant, namely harm to the complainant's reputation and the disclosure of the visual material revealed the identity of the complainant, namely by showing the complainant's face.

See Penal § 21.16(b). After he was charged appellant filed his Petition for Writ of Habeas Corpus, arguing that section 21.16(b) is facially invalid under the First Amendment and the Texas Constitution.

The trial court held a hearing on appellant's writ application and, at the end of that hearing, denied relief. This appeal followed.

Section 21.16(b)

The Texas Legislature first passed a statute titled Unlawful Disclosure or Promotion of Intimate Visual Material in 2015; that statute was amended in 2017 (the 2017 Statute), and again in 2019 (the 2019 Statute). In all of its iterations, the statute has restricted, under certain circumstances, the disclosure of visual material depicting another person with the person's intimate parts exposed or engaged in sexual conduct. Penal § 21.16(b)(1).

The 2017 Statute was challenged a number of times in Texas courts as an unconstitutional restriction of free speech. Addressing such a challenge in 2018, the Tyler Court of Appeals held that the 2017 Statute was a content-based restriction of free speech that failed strict scrutiny and was overbroad under the First Amendment. Ex parte Jones, No. 12-17-00346-CR, 2018 WL 2228888, at *8 (Tex. App.-Tyler May 16, 2018), rev'd and remanded, No. PD-0552-18, 2021 WL 2126172 (Tex. Crim. App. May 26, 2021) (per curiam) (not designated for publication). Employing a relatively detailed hypothetical, the Tyler court identified a number of problems it found with the 2017 Statute, including the fact that it did not require the actor to have any reason to know about circumstances indicating the depicted person had a reasonable expectation that the material would remain private. Nor did the 2017 Statute require any intent to harm the person depicted; it required only an intentional disclosure. Id. at *6.

On appeal, the Texas Court of Criminal Appeals reversed the Tyler court, concluding that "[a]lthough Section 21.16(b) is a content-based restriction, it is nevertheless narrowly tailored to serve a compelling governmental interest, namely, protecting sexual privacy," and that-when properly construed-the 2017 Statute was not overbroad. Ex parte Jones, No. PD-0552-18, 2021 WL 2126172, at *17 (Tex. Crim. App. May 26, 2021) (per curiam) (not designated for publication).^[1] In 2019, while Jones was on appeal to the Court of Criminal Appeals, the Texas Legislature amended section 21.16(b) in an apparent attempt to address the Tyler court's concerns with the statute. The legislature removed the requirement of intentional disclosure and replaced it with the requirement of disclosure with an intent to harm the depicted person. And while the 2017 Statute had included this circumstance necessary for the offense: "the visual material was obtained by the person or created under circumstances in which the depicted person had a reasonable expectation that the visual material would remain private," the 2019 amendments added the requirement that-at the time of the disclosure-the actor know or have reason to know of that circumstance.^[2] Appellant was charged with a violation of section 21.16(b) in its current form, i.e., including its amendment by the Texas Legislature in 2019. The entire 2019 Statute states:

A person commits an offense if:

(1)without the effective consent of the depicted person and with the intent to harm that person, the person discloses visual material depicting another person with the person's intimate parts exposed or engaged in sexual conduct;

(2) at the time of the disclosure, the person knows or has reason to believe that the visual material was obtained by the person or created under circumstances in which the depicted person had a reasonable expectation that the visual material would remain private;

(3) the disclosure of the visual material causes harm to the depicted person; and

(4) the disclosure of the visual material reveals the identity of the depicted person in any manner, including through:

(A) any accompanying or subsequent information or material related to the visual material; or

(B) information or material provided by a third party in response to the disclosure of the visual material.

Penal § 21.16(b).

Standard of Review

A defendant may seek a pretrial writ of habeas corpus to challenge the facial constitutionality of a statute, i.e., to attack the validity of the statute itself. See Peraza v. State, 467 S.W.3d 508, 514 (Tex. Crim. App. 2015). Whether a statute is facially constitutional is a question of law that we review de novo. Salinas v. State, 464 S.W.3d 363, 366 (Tex. Crim. App. 2015). When the constitutionality of a statute is attacked, we usually begin with the presumption that the statute is valid and that the legislature has not acted unreasonably or arbitrarily. Ex parte Lo, 424 S.W.3d 10, 14-15 (Tex. Crim. App. 2013). Ordinarily, the burden rests upon the party challenging the statute to establish its unconstitutionality. Id. at 15. However, when the government seeks to impose punishment for content-based speech, we reverse these standards: content-based regulations are presumptively invalid, and the government bears the burden to rebut that presumption. Id. at 15.

Discussion

Appellant challenges the 2019 Statute in three issues. His first and second issues contend that the statute does not satisfy the strict scrutiny standard under the First Amendment or the Texas Constitution. His third issue argues that the 2019 Statute is overbroad.

Strict Scrutiny

The trial court concluded that the 2019 Statute "regulates content-based speech and strict scrutiny analysis applies" when adjudging its constitutionality. Neither party challenges that conclusion. A law that regulates speech will satisfy strict scrutiny if it is necessary to serve a compelling state interest and if it is narrowly drawn. Lo, 424 S.W.3d at 15. Texas courts have concluded that the sexual privacy protected by the 2017 Statute is a compelling government interest. See Fairchild-Porche, 638 S.W.3d at 783. Neither party disputes that the same compelling privacy interest underlies the 2019 Statute. Thus our focus in the strict-scrutiny analysis focuses on the requirement that the 2019 Statute be narrowly drawn. A regulation of speech is narrowly drawn if it uses the least restrictive means possible of achieving the compelling government interest. Lo, 424 S.W.3d at 15-16.

The First Amendment Challenge

In his first issue, appellant contends that the 2019 Statute fails a strict scrutiny challenge under the First Amendment's guarantee of free speech because the statute is not narrowly drawn in three ways.

1. No culpable mental state for lack of effective consent

Appellant argues that the statute attaches no culpable mental state to the circumstance "without the effective consent of the depicted person." Penal § 21.16(b)(1). The same challenge was made to the 2017 Statute, and Texas courts employed the following analysis:

• Intentional disclosure of intimate visual material is a constitutionally protected act, not a criminal one. The 2017 Statute criminalized that conduct only in the presence of three circumstances, one of which was lack of effective consent by the depicted person.^[3] Absent a culpable mental state for that circumstance, the intentional disclosure would effectively be an unconstitutional strict-liability crime. Fairchild-Porche, 638 S.W.3d at 784.

• The "intentional" mental state attached to disclosure of the material cannot apply grammatically to the lack of effective consent; in addition, the Penal Code does not permit an intentional mental state to apply to a circumstance of conduct. Id. at 784-85 (citing Penal § 6.03(b)).

• Courts may infer an appropriate mental state to avoid a statute's becoming an unconstitutional strict-liability crime. See id. at 785 (citing Penal § 6.02(b) ("If the definition of an offense does not prescribe a culpable mental state, a

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